June 30, 2010

Not much more to add to Shaun Martin here. To be sure, this is a nonviolent offense but one that is sexual in nature -- but I agree that this isn't something that should require a guy to register as a sex offender for the rest of his life. One wonders if a guy made a sexually suggestive gesture at a woman while at a boozy party, he would have got similar treatment -- or if a woman made a similar gesture at a man.

Probation seems about right for this guy, but getting put on the Megan's Law list does not seem appropriate. The punishment should fit the crime.

The political dynamic of ever-accelerating punishments is easy to understand. No legislator, no judge, no prosecutor, wants to be seen as "soft on crime," so they charge not only the maximum plausible offense and lesser-includeds, but then they take it up the next level; they mandate and insist upon harsher and harsher punishments. This has been going on for generations now, and so when you approach already-tough crime laws, you have to prove that you are tougher than anyone who came before you. Thus, a crime that in 1950 would have got you probation and a fine winds up being punished with mandatory public service in 1960 and then three to six months in 1970 and then one to two years in 1980 and then two to ten years in 1990 and five to twenty years in 2000 and in 2010, it's a third strike and you've got twenty-five to life. Same crime the whole time. Perhaps that's a little dramatic, but you get the idea.

There seems to be tremendous fear and anxiety about crime out there, or at least great political appetite for this "tough on crime" dynamic -- but the fact of the matter is, crime is down and has been going down for the better part of a generation. As we have fewer and fewer criminals, do we have to be harsher and harsher on them? Because the escalating one-way street is eventually poisonous to justice.

June 29, 2010

I don't follow things like initial public offerings very closely, but I was interested to learn that Tesla Motors had an IPO today. Had I known, I'd have considered taking a flier on it. The Tesla Roadster inspired automotive lust in me from the moment I laid eyes on it in its Westwood showroom, and its development of a four-door sedan seems like a great next step.

Frankly, I think it would behoove the company to look at making luxury cars, sacrificing the high performance of its Roadster for the heavier weight and greater comfort of something like a 7-series BMW while still appealing to the high end of the auto consumer market. But it looks like instead, they're going to compete directly with the Chevy Volt.

In any event, I think this is a company that will do well in the future. It's getting the funding it needs at the right time in its development. It's not been profitable yet, but that doesn't mean it won't be. One day I can see Tesla growing to the point that it replaced Chrysler as the #3 American auto maker. Another opinion voiced about the subject was that it will be moderately profitable but always catering to a niche market; it will not have the mass-market appeal of, for instance, Chevrolet. Still another opinion is that electric cars are doomed in the high-end market; aside from a few novelty buyers, sports car buyers want to hear a rich, throaty "vroom-vroom" and feel the vibration of an engine and will never fully embrace a glorified golf cart.

While it is entirely possible that most if not all of these positions were taken in the course of advocacy of her client, the government, over time a lawyer cannot help but acquire at least some familiarity, comfort, and ideological congruence with arguments that the lawyer makes over and over again. Additionally, while Dean of Harvard Law School and otherwise in academia, she was free to espouse whatever beliefs she thought were normatively best. I'm finding myself becoming more and more persuaded that Elena Kagan has a personal viewpoint of First Amendment rights such that she considers them at best an inconvenience to good government, and at worst, not within the appropriate ambit of the judiciary to safeguard.

If that is the case, then that would prove the biggest civil rights disappointment yet of the Obama Administration, and I would have to register my hopes that she is not confirmed to a lifetime appointment to the Court which is supposed to be the ultimate guardian of individual rights.

For the record, Congressman Boehner said he would raise the benefits eligibility age to 70 for people who have more than 20 years to retirement, meaning by definition people younger than fifty. He also said he would means-test for the wealthiest Americans, meaning that the very "fat cats" he's accused of protecting would be the ones who would lose the benefits that they really don't need anyway.

I had a motion in an eviction case today and the other side filed an affidavit on the assigned judge. Usually, this would result in the case going over to the other civil judge, but he was on vacation today. So instead it went to a judge in a criminal court, and we wound up sitting around for three hours listening to arraignments, plea-bargains, and sentencing.

One of the things that impressed me about the proceedings was not the thoroughness with which the judge approached the defendants' Constitutional rights, but rather the detail with which she treated the probation or O.R. terms. And some of it seemed very stark and painful to hear. "You are not to own, possess, or be in the presence of firearms. This is a lifetime ban. You are to submit to searches of your person, your effects, your vehicle, and your home by any law enforcement officer, with or without probable cause or reasonable suspicion, without notice, and at any time." For a felon, the ban on owning weapons is probably a good idea, but hearing it expressed in that fashion seemed harsh. I don't own a gun, but if I wanted to, I could -- and I like that this is my might. If a cop wants to shake me down for evidence, I can demand that the cop explain why or require that the cop produce a warrant. I value that right very much.

How awful to have those rights stripped from you. How dehumanizing to have to stand there in court, wearing a county-issued jumpsuit, and have a stranger in a black robe unemotionally recite these diminution of your citizenship. How terrifying to have to accept the advice of a stranger who is your appointed attorney (she may well really be on your side but probably doesn't have the time to build a significant relationship of trust with you) who tells you that it's probably better for you to spend some time in jail than the other alternatives available to you. Jail seems like a very scary place to me.

It was clear the judge thought there were better and more pressing demands on her time than another judge's civil calendar. She ran through long-winded recitals of rights for every defendant, and detailed descriptions of the terms of prison and jail sentences (for the uninitiated, "jail" is a facility which you are intended to stay in for less than a year, and "prison" is for visits of more than a year; your results may vary). At one point, there was a break in the action and one of the prosecutors turned to me and expressed frustration with the slow pace of the proceedings. Apparently he was used to doing things about three times faster than what was being done. It was hard to tell if the public defenders were similarly frustrated; they were very busy trying to tell their clients what was or was not a good deal and hashing out plea arrangements with the prosecutor.

After a break for the morning recess and returning for the afternoon calendar, the judge heard the motion and got it wrong, not understanding that when the plaintiff remits all claims for money, habitability ceases to be an issue preventing entry of a judgment for possession. Nor did she care that the defendant had failed to invoke that defense at all in the basic pleadings but instead raised it only in a declaration opposing the motion. So in addition to all that good fun described above, we got a bad ruling and now our client is going to have to pay even more money than before to get this troublesome piece of crappy property vacant so he can rehabilitate it and avoid habitability issues in the future.

In the meantime, he's apparently supposed to somehow teleport all the trash away and use telekinesis to repair the claimed damage to the property because the tenant will not allow him to enter the premises and make repairs. But this sort of Catch-22 is a normal frustration for evictions. Getting sent to a criminal court where the law and facts get short shrift from the bench is not.

For the most part, I think that solar power generation is part of the wave of the future. It isn't always reliable (clouds and night) and so far it isn't super-efficient, but it's getting there. But one advantage of solar power that we are supposed to believe in is that it has little to no environmental impact. Well, think again. Its use of fresh water -- a semi-renewable resource from a global perspective, perhaps, but not one that can be easily recaptured in process -- as well as a greater-than-you-might-expect visual and terrain impact are significant environmental issues. Not as serious as oil slicks larger than some nations in the Gulf of Mexico, to be sure, but also not a "zero impact" technology.

The author is clearly a fan of photovoltaic solar generation, which is a great technology, and decentralizing it among a lot of locations and on existing structures, so that its overall environmental impact is minimized. Great thoughts, but even that is not without environmental impact, because electricity has to get from its generation location to its ultimate use, which is mainly in urban areas that will need to import power from elsewhere, so we're still talking about a lot of wires to move electricity around. And photovoltaic solar generation is pretty much the most expensive electricity out there, looking at a watt-for-watt cost and taking into account the cost of producing the materials necessary to come up with electricity over the lifespan of the generation facility. So while perhaps the most environmentally pure, it is also among the least economically desirable ways to go. For the time being, at least, economy is a bigger driver in this arena than ecology.

This is just a reminder that there is almost no way to generate electricity without some negative environmental impact. There is no solution that does not involve some kind of a trade-off. We should of course continue to figure out cheaper ways to make photovoltaic solar generators. We should also continue to develop wind farms. But for the big, reliable power needs of an advanced industrial economy like ours, at the end of the day our short- and mid-term power needs will only be met by nuclear fission.

First and more importantly, the irregularly-recurrent legal kabuki theater known as Supreme Court confirmation hearings have begun, this time for Solicitor General Elena Kagan's nomination by the President to replace retiring Justice John Paul Stevens. General Kagan gave a scripted opening statement, promising that her judicial philosophy would be a "modest" one but otherwise revealing nothing at all, which was followed by interminable hours of vacuous speech-making by the Senators on the panel. The end result is that the only fact which remarkable at all to be gleaned from this proceeding was Kagan's use of the same word, "modest," invoked by Chief Justice John Roberts in his confirmation hearings. Critics of Roberts have claimed that since assuming office, his rulings have been anything but modest; but to base such a criticism of Roberts on his confirmation hearings attributes a level of jurisprudential significance to them which is entirely fictitious. A similar, albeit politically reversed, dynamic is now all but certain to emerge when Justice Kagan is criticized in the future.

Second and more momentously, Robert Byrd has finally died. America's longest-serving legislator, somehow forgiven within the Democratic party for having joined the Ku Klux Klan in his youth (he rose to the rank of "Grand Cyclops" and I don't even pretend to know what that means), and the undertaker of the Atlas-like labor of moving the Federal government, bit by bit, to West Virgnia, Senator Byrd holds part of the record for elections to the Senate (nine times) and has been helping govern the nation and funnel more than West Virginia's share of the Federal budget to that mountainous state since the Eisenhower Administration, earning him the title "Emperor Palpatine of Pork" by Citizens Against Government Waste. More recently, he tried to split the baby on the impeachment of President Clinton, moving to dismiss the charges against Clinton at the same time he insisted that what Clinton had done was a serious problem and voting to censure Clinton for his perjury; he also tried to have it both ways on abortion, flag desecration, same-sex marriage, and environmental protection. Thoroughly a creature of Washington politics, Byrd's passage will be missed greatly in his home state but in my mind he was a symbol of everything I dislike about the way politics is done in the contemporary era. While I frankly welcome his absence from the Senate, I realistically anticipate that his replacement will be someone very much like himself (West Virginia's Governor is a Democrat) and of course he was loved by his family and friends and their grief at his loss should be acknowledged and respected regardless of the now-departed Senator's political history.

When I first heard that Australia had got a new Prime Minister, the first woman to hold that position, I sort of yawned. The idea of a woman leading a nation is simply not remarkable to me; women have been in politics long enough and enough women have demonstrated political ability and nerve that it's been proven to my satisfaction many times over that women can lead politically as well as men.

But when I found out that she does not believe in God, I sat up and took notice. Better yet, she is forthright and then dismissive about the matter:

She says does not go through religious rituals for the sake of appearance.

"I am not going to pretend a faith I don't feel," she said.

"I am what I am and people will judge that.

"For people of faith, I think the greatest compliment I could pay to them is to respect their genuinely held beliefs and not to engage in some pretence about mine."

"I grew up in the Christian church, a Christian background. I won prizes for catechism, for being able to remember Bible verses. I am steeped in that tradition, but I've made decisions in my adult life about my own views.

"I'm worried about the national interest. About doing the right thing by Australians. And I'll allow people to form their own views about whatever is going to drive their views."

Prime Minister Gillard attained her office by way of a squabble between two factions of the Labor Party, in which it appeared that she led a movement by the more leftward wing to wrest control of the leadership from the Tony Blair-like market reform Laborites led by the former Prime Minister, Paul Kevin Rudd. This is not an auspicious beginning to her leadership of her nation; she must now re-unify her own party and turn the government around, because the opposition Tories can point to both tough economic times and disunity within the Labor party when it comes time for elections again. Gillard will have her work cut out for her.

The facts are simple if novel -- a group of students at a public university wished to form a group and exclude homosexuals from it. They claim they have a First and Fourteenth Amendment right to freedom of association and that includes the right to exclude people from their group they do not want to associate with. (Association with others itself conveys a message and is therefore a form of speech; this contention is not disputed.)

On the other hand, the school administration says that all student groups are chartered by the school, and therefore part of the school. The administrators stated that as a public institution, the school has an obligation under the Equal Protections Clause of the Fourteenth Amendment to make sure that everyone has access to all school facilities. Therefore, the school's rule for student clubs is that all student clubs must accept into their ranks anyone who wishes to join.

So that's the fight -- does the "take-all-comers" policy, by compelling the Hastings Christian Fellowship to accept within its ranks "unrepentant homosexuals" despite its adoption of a policy excluding such people as contrary to the reason for the group's existence, thus violate the First Amendment? The breakdown of the case was 5-4 along the traditional ideological lines, with swing-vote Kennedy siding with the majority. Justice Ginsburg wrote the majority opinion, Justice Alito wrote the dissent. As you might imagine, the Ginsburg opinion says "no First Amendment violation," and the Alito dissent says "yes, there is a First Amendment violation."

My man Timothy Kincaid sees the legal tension perfectly. On the one hand, it's obnoxious that gay students would have to pay money that would be used to support a group that excludes them and calls them immoral. On the other hand, a rule like this creates a significant risk which the Court wrongfully downplays:

Would, for example, the Clara Foltz Feminist Association be subject to a take-over by religious conservatives who can then vote that the club take positions which oppose reproductive rights and assert that a woman is to be subject to her husband? Could the Hastings Jewish Law Students Association become the missionary arm of Jews for Jesus – or of the Scientologists, for that matter? Can the new motto of the Environmental Law Society become “Drill, baby, drill”.
While this may seem unlikely, it is not unheard-of for a student organization to be hijacked for petty school politics, or even as a lark. The court, however, did not think that such concerns were reasonable.

Kincaid is right to take that risk seriously. Student groups are particularly vulnerable to takeovers of this nature, precisely because the marginal cost of supporting a takeover is so low. All it would really take is two or three motivated people to organize a dozens-strong walk-in at the group's annual organizational meeting and suddenly you've stacked the meeting room of the College Republicans with a bunch of granola-eating Greens and Progressives, and you get crazy things going on like the College Republicans endorsing the repatriation of the Mexican Cession to the indigenous peoples.

Complicating the issue is the fact that homosexuality, the status upon which the student group sought to exclude members, is not a traditionally protected class under the Fourteenth Amendment, although it is under several Federal educational statutes and under the California State Constitution. If applicable, the First Amendment associative right would trump all of that.

So the question is, does the associative right come in to play at all here? The majority says no, because the "take-all-comers" policy applies equally to every group on campus, the "public forum" in question here is significantly limited (to students at Hastings Law School), and the administrators are entitled to a degree of deference in balancing the competing Constitutional concerns of non-discrimination and permitting free expression because the school is ultimately paying for it all.

My take on it is, there was never anything stopping the Christian students of Hastings Law School from forming their own informal club. If they want to have a private organization and exclude gays, they can. If they want to participate in a public institution, they need to play by the public institution's rules, which includes non-discrimination. Not that advances in technology change the Constitutional principles at stake here, but they do highlight the concept: in this day and age of Facebook, e-mail, cell phones, text messages, Twitter, and bluetoothing, there is nothing at all to stop these students from forming an extra-curricular club and inviting or excluding anyone they choose.

Nor is there anything stopping a group, assuming it abides by campus rules equally applicable to every group, from advocating the point of view that homosexual conduct is immoral or undesirable. That is a moral, legal, and social issue of contemporary interest (and a viewpoint on that issue with which I happen to disagree) and if that's what the students in the group think, they have a right to say it. If it happens that they have members within their own group who disagree with that position, well, that's something they have to work out amongst themselves and it doesn't stop any individuals from dissenting either in public or in private.

But it's a tough question. There is no good solution to this case. It has to be decided "yea" or "nay," and either way implicates and, at least potentially, diminishes some rights while enlarging others. There is no way around it, the circle can't be squared; either association bows to equal protection or equal protection bows to association. That's what is so vexing, and intellectually challenging, about constitutional law, and that's why I enjoy it so much.

On the evening of June 28, 2010, at 9:00 p.m. and after dark, two young men wearing ADT golf shirts rang the doorbell of my home, and began a sales pitch with a question containing scare words and loaded terms about home invasions, burglaries, and medical emergencies. Perhaps your salesmen did not know this, but they woke up my wife who had already gone to sleep, and disturbed my peace.

The salesman apparently did not listen to or did not care about my response, because he immediately launched into a fast-talking sales pitch concerning a free installation as long as I agreed to advertise your company on my front lawn. He gave the distinct impression of being unwilling to take “no” for an answer. Having encountered people trained in hard sell techniques before, I knew that unless I interrupted him and firmly ended the sales call, I would be standing there all night listening to a sales pitch while insects flew into my house through the open door or asked to invite two total strangers into my home after dark – the very opposite sort of feeling that a “security” company ought to be engendering in its customers. I therefore stated unequivocally that I was uninterested in his product and closed the door.

A moment later, I heard through the door one of them taunting me with the phrase “Good luck!” Perhaps your salesman felt insulted and believed himself to be returning rude treatment in kind. While I have little concern for the salesman's opinion of me one way or the other, perhaps this is not the sort of thing you want people representing your company to be doing. I might add that if your salesman lacks the emotional steel to handle someone closing a door in his face while refusing to buy his product without having to vent his hurt feelings, chances are good that he is in the wrong line of work.

In fact, my greatest security concern about home security is burglary perpetrated by people who case out my home while posing as door-to-door salesmen. The fact that these two men came after dark, unannounced, and seemed interested in entering my house while I was apparently alone, only enhanced my concerns. The fact that a “hard sales” pitch was used, engineered to simultaneously manipulate my emotions and deny me the effective opportunity to make my own decisions, added insult to the irritation. This has left me with a lingering distaste for the entire experience, one which I intend to share with my professional colleagues.

I make it a practice to never, ever, buy anything from any company that uses door-to-door solicitation or “hard sales” techniques. These salesman did both. Therefore, I will not do business with your company, now or in the future. In the event that we decide to purchase a home security system in the future, we will contact one of your competitors -- directly.

I thought you might like to know the foregoing so that you could understand how you had lost at least one customer and possibly more.

June 24, 2010

What the hell is a "fighting jonda" anyway? And how could they have scored three goals? Oh well, so much for the Azzuri. I'm all about the Stars and Stripes now. I think they can hang with any of Ghana, Uruguay, or South Korea. Take nothing for granted, soccer fans.

June 22, 2010

The new government in the United Kingdom has done what needed to be done. It cut spending. Some social welfare benefits are being frozen, others capped, some given conditions. It adjusted taxes, raising taxes in some places and easing the blow with tax cuts elsewhere. A great many governmental benefits and taxes will both be indexed to inflation. Even the Queen gets to feel the pinch.

And it is precisely what Britain needs in both the short and long runs. It is precisely the sort of thing that ought to be happening in the U.S. and any other industrialized nation whose central government's primary mission has become writing checks to its own nonproductive citizens.

Congratulations to Prime Minister David Cameron and his coalition partner, Deputy PM Nick Clegg. It must have sucked to do, gentlemen, but it needed doing. You have rendered Her Majesty's government and the United Kingdom a great service and set an example for the rest of the world to follow.

Everyone is blogging, talking, and tweeting about the profile of General Stanley McChrystal in the current edition of Rolling Stone, which hit the Internets today. What seems to be catching everyone's attention is a combination of the dismissive to disrespectful tone towards the Obama Administration that Gen. McChrystal allowed the reporter to see and which he seems to foster and encourage in his staff, and the fact that McChrystal so openly airs his policy disagreements with the President concerning the proper manner in which to handle U.S. military involvement in Afghanistan.

No one I've yet read seems to have given the remotest thought pay any attention to the fact that McChrystal also seems to have little time for Hamid Karzai. Perhaps this is because because the President of Afghanistan is so obviously a second-tier player in the struggle to pacify that country, resulting from the impotence of the government he commands.

I won't disagree with saying that allowing the Rolling Stone reporter to get this close to him and his staff, and airing his attitude towards the President so publicly, is "poor judgment." It's appallingly unprofessional. But I also don't think McChrystal is insubordinate. He doesn't like the President and disagrees with the President's policies. No one ever said he had to like the President; he has a right as an American to disagree with the President's policies.

What he has to do is follow the President's orders and implement the policies he's instructed to implement as best he can and using all the skills, personnel, and materiel available to him to do so. If you read the article closely, you will see that he argued for implementing a counter-insurgency policy in Afghanistan -- and prevailed; the President agreed with that suggestion as a matter of fact if not in explicit terms, and gave McChrystal nearly all of the men and materiel that he requested to implement that policy. The President is perhaps unenthusiastic about the policy but that's what the decision is.

There is no insubordination because I cannot find a spot in the article in which McChrystal is described as disobeying an order given to him by the President or even by the Pentagon. He might be portrayed from the article as dragging his feet on things he does not think are good ideas, of creating policies of his own to do things he wants done in his way, and putting his hand in politics in Washington, Kabul, London, and elsewhere to try and create an atmosphere favorable to doing things his way. But the very nature of his position requires this of him. Counterinsurgency, as we've come to know from the Iraq war, requires a close relationship between the occupying military and the government which it is trying to prop up. That government, in turn, takes as many cues from events in Washington and London and Paris as it does from events in Kabul and Kandahar.

Perhaps more to the point, a general given command of an entire theater is supposed to create policies to implement the mission. He isn't supposed to be a mechanic turning wrenches at Bagram. He's supposed to be identifying and solving problems on his own. To criticize a man in McChrystal's position for making and implementing the policies he thinks are the right ones is to criticize a business executive for doing things that he believes will maximize profits for his corporation. Maybe you disagree with those decisions; that's one thing. But he's supposed to be making them. As to orders given to him, he certainly has a hand in fashioning what they are, but he has not disobeyed them and has not held himself out as having superior authority to the President.

This may be an indiscreet man, less politically savvy than one would prefer and one too willing to use leaks to influence the political dynamics at home to get his way. Perhaps he let his ego get in the way of establishing a good relationship with the President; perhaps the President's fundamental disinterest in military matters is partly to blame for that, too. But my impression after reading the article is that he is not insubordinate, and he does not represent a threat to civilian control of the military. This is not a situation akin to the challenge to civilian control of the military that Douglas MacArthur came to represent in 1951.

The real issue, it seems to me, is that counterinsurgency doesn't seem to have been the right choice. Not just President Obama, but also General McChrystal himself appears to have doubts and ambivalence about it. It hasn't produced any results yet. And the story is not so much that a General in the military would clearly prefer to be reporting to a different commander-in-chief than he does -- the story is that this General, having argued and successfully politicked for something approximating this policy, is having a hard time getting it implemented the way he wants and a harder time selling it to his troops. Here's the real money quote from the article if you were to ask me:

"Fuck, when I came over here and heard that McChrystal was in charge, I thought we would get our fucking gun on," says [Staff Sgt. Kennith] Hicks, who has served three tours of combat. "I get COIN. I get all that. McChrystal comes here, explains it, it makes sense. But then he goes away on his bird, and by the time his directives get passed down to us through Big Army, they're all fucked up – either because somebody is trying to cover their ass, or because they just don't understand it themselves. But we're fucking losing this thing."

That seems to me to be profound evidence of a political failure on McChrystal's part. General level officers have jobs that are political and executive rather than operational in nature. If McChrystal can't get the orders he needs distributed to the soldiers in the way that they should be implemented, if he can't get the soldiers who need to implement those orders to understand and embrace their mission, that's a failure by a military leader to get his own job done, never mind whether or not the politicians in D.C. are sticking their fingers in what the General is trying to do.

That's not to say the President comes out of this article looking good. He doesn't; my impression of Obama from the article is that Obama has no good ideas of his own for Afghanistan and agreed to counterinsurgency because no one else gave him any better ideas. But the article isn't so much about Obama as it is about a general who has (had?) a plan but can't seem to make it happen because he can't find a way navigate the course he wants to steer between the people to whom he reports and the people who report to him.

Which gets us back to the big picture. That picture is that as in Iraq, there is no "winning" the war in Afghanistan. At best, there may be sufficiently stable enough conditions that a substantial withdrawal of U.S. military forces can be accomplished with honor and credibility. For that to happen, there has to be a functioning government that is more or less within the orbit of the industrialized West. That, everyone seems to agree, is not a destination yet on the horizon. If a reasonably-functioning government cannot be established, then Kabul 2015 is going to look a lot like Saigon 1975.

Let me throw out an idea for your consideration. Maybe you won't like it, and I'm not 100% behind it myself. But I think it deserves some thought. Democracy in Afghanistan is not the answer. The "reasonably-functioning government" in Afghanistan that we must create will inevitably be based on a competent, centrally-controlled military; the involvement of a democratic process in selecting the people who ultimately command that military is a secondary concern at best and more likely somewhere between an irrelevancy and an impediment to the real goal.

Ah, the missed opportunities felt by students with "B" but not "B+" grades!

Well, this never happened when I went to Loyola Law School. I, like so many other people with good-but-not-great grades, was stuck living with the consequences of not proving myself a young god striding the earth like a colossus but merely a smart and promising young lawyer. I certainly didn't have an administration explicitly, transparently, and unashamedly raising up my grade point average to an unearned level so that I would have an edge in the job market. I also didn't have the school paying a law firm to employ me so that I could get my foot in the door somewhere that wouldn't have otherwise considered me because I had the equivalent of a 3.2 grade point average and their cutoff for consideration was 3.5. Instead of six-figure salaries right out of law school, or a prestigious Federal clerkship to open doors for me later in my career, I got to cut my teeth at a public interest firm and then do insurance defense before striking out on my own.

Loyola, it seems, has realized that its grading curve is simply too steep and produces numbers that look like its students are underperforming compared to their counterparts at UCLA and USC. And after many years of this, it's the UCLA and USC grads, not the Loyola grads, who got on partnership tracks at prestigious firms and have been able to make handsome donations back to their schools as alumni. The obvious solution to close the gap? Give your students better grades, whether they earn them or not!

Now, I always thought that I was an intellectual equal to my peers with only slightly better grades than me. It never seemed fair that a few percent of a few points here and there meant they got offered the brass rings and I got to admire the grain of the wood on the exterior doors of the BIGLAW firms; I was just as bright as them, just as capable, but maybe not quite as lucky or with quite the same kind of support and background to give me that little nudge and get over the hump and into the Promised Land.

So, if some students are getting their grades retroactively increased, why not go back and do the same for alumni? My grades were right on the cusp of making it into the honor society, but not quite good enough. So if you inflated them by a third of a point, maybe I'd have gotten in! Maybe with a one-third of a point boost, I would have qualified for that judicial clerkship, or been eligible for consideration by Nasty, Poor, Brutish & Short, LLP, for a paid internship instead of a "thin letter." Maybe with a school-funded salary subsidy, I'd have been able to get the attention of a hiring partner at Arrogant, Expensive & Condescending, LLP and got an interview for a summer associate position and earned my next year's tuition and rent money instead of having to take out loans and work for a public interest firm to cut my teeth before I could start making real money.

So how about the school arranges to have its alumni retroactively paid the hundreds of thousands of dollars that a high-powered career track I could have had if only my grades had been inflated, wipe out the debt and the low-earning years and the unprestigious work of defending seedy dive bars from lawsuits filed by the losers of the weekly brawls and knife-fights, and replace them with the sexy trademark litigation and billion-dollar real estate deals that my peers whose grades were only one-third of a point higher than mine actually got to do?

No, that isn't going to happen. Here's what's really going to happen. No one cares about my grades anymore, sixteen years after I graduated from law school. But they the grades of recent graduates still matters to them. Now that the word is out that Loyola inflates its grades by one-third of a point for every student, savvy employers and judges considering resumes from Loyola graduates and students are now going to mentally subtract a third of a point from the applicant's GPA -- whether the grade of this particular Loyolan has been inflated or not. Fewer Loyolans, not more, will get the good clerkships, the good internships, the doors to the high-arc career paths opened -- because the value of a Loyola of Los Angeles Juris Doctorate has just been permanently cheapened, by one-third of a point.

June 21, 2010

The Wife said to me the other day that she admires my skills at diplomacy and ability to navigate social situations. This absolutely blew my mind. When I look in the mirror, I see a man who prefers the company of a few close friends to anything involving new people, and whose self-consciousness over his inability to engage in small talk nearly parallels that of his inability to whistle.*

All too frequently, I feel very awkward and uncomfortable in social situations, particularly ones involving a large number of people whom I have never met. A large party of strangers is a deeply intimidating environment for me, not one into which I eagerly dive in the hopes of emerging with dozens of new friends. Small talk and light jokes have always been a tremendous effort of imagination for me, which have much more often than not left me drained by the end of the evening. Talking about nothing is difficult.

That's not to say I can't, don't, or won't engage in that sort of social activity. I do have the skills and abilities necessary to meet new people and make myself agreeable to them. But I don't enjoy or seek out such situations and nearly all of the time, I find myself uninterested in pursuing a friendship with the people I thus meet. Not that I feel superior to them or that becoming friends with new people is some kind of condescension. In truth, what restrains me is quite probably my own lack of self-confidence because I wonder why people would want to be friends with me.

So mingling at parties, mixers, and bars has always been tough for me to do. I have always found being placed in an environment with a lot of new people to be mentally and emotionally exhausting, and I likely always will. In order to really feel comfortable at a larger social gathering that includes new people, I need to have known about half the people there before I got there. That's probably why I never flourished in politics; I always preferred policy to politics anyway.

I express these things as regrets for a personal shortcoming because I think they are a personal shortcoming. I envy the people who truly enjoy meeting new people and therefore become very good at doing it. I have never seen myself that way or felt like such a person and such people seem to be happier and better off in the world than I. That doesn't mean I want a social angel to come along and introduce me to a dazzling galaxy of interesting new friends; it doesn't mean I crave sympathy or pity for my inadequate social life. I have a more than adequate social life and a healthy stable of friends. Making new friends is not easy or enjoyable, but I am capable of completing this task. I do wish I didn't think of it as a "task."

After all, the professional life I have chosen for myself requires that I do this sort of thing from time to time, whether it be with new clients or prospects, new adversaries or judges, or at professional networking functions like bar association meetings or mixers. When in such a situation, I make the effort to meet people and try as hard as I can to think up new kinds of nothing to talk about with people who I do not know. I do go through lots of business cards because that's part of what it is to be a practicing lawyer; you need to get your name out there and meet lots and lots of people. But I also have to be reminded from time to time by one of the partners in my firm to schmooze up my eviction clients the same way a child has to be reminded by his parents to make his bed or put away his dishes and for the same reason: it's a chore, something one does perhaps to earn a reward but which is very different from the reward itself.

But it's one of the facets about my profession and some dimensions of my social life which are somewhat unpleasant, the same way that I find picking up after my dogs every couple of days to be a disagreeable part of the otherwise-enjoyable companionship which I enjoy with my pets.

What's amazing is that apparently, I've been able to subsume my real feelings about this so convincingly that more than six years after we married, my wife had no idea about it. It's very odd to come across such a stark contrast between my own self-image and that of someone so close to me. I can't imagine how that came to be. I wonder what other kinds of disconnects between my self-image and others' perceptions of me might be out there.

I suspect that I might be happier should I remain ignorant of other answers to that. Learning that my wife perceives me to be more socially adept than I think I am has not made me any more or less happy than I was before. It has, however, left me somewhat unsettled.

* That's right, I can't whistle; when I pucker up my lips air soundlessly blows out. I've never been able to whistle despite dozens if not hundreds of people throughout forty years of my life offering the profoundly unhelpful advice, "Aw, come on, it's easy!" Please resist the impulse to whistle should you encounter me in person and remember this bit of trivia; it only amplifies my sense of personal inadequacy and sadness at my inability to whistle. After all, if you met a paraplegic, you hopefully would not tell her that it was easy for you to do jumping jacks and then demonstrate how you can just do them whenever you feel like it. If you possessed more empathy than that of a cobra contemplating a nearby wounded mouse, you would anticipate that such behavior would hurt the paraplegic's feelings. The emotional parallel for a non-whistler is closer than you might imagine.

June 20, 2010

For a friend's "assemble your own pizza" party, this was my contribution. I confess I used pre-made crust and ragu for this today, because we just didn't have time today for me to make these things from scratch unless I skipped playing golf this morning after watching the gamecast of Italy-New Zealand's exciting tie.

Focaccia (or if you're in a hurry, pre-made) pizza crust
6 tbsp. ragu Bolongese
7-8 small globes of fresh buffalo mozzarella cheese, marinated in olive oil, oregano, and red pepper flakes
7-8 slices Salami Calabrese
½ shallot
5-6 cloves garlic
½ white onion
1 red pepper
6-8 anchovies
Extra-virgin olive oil (there should be plenty of this on hand at all times in any kitchen that is there for more than mere compliance with the building code)
A few pinches of corn meal (if using pre-made crust instead of your own focaccia)

Julienne the pepper, and mince the garlic, shallot, and onion. Place on aluminum foil, drizzle olive oil on top, roast at 325° for about 20 minutes. Spread about 1 tsp. of olive oil over the bottom of the focaccia; sprinkle corn meal on bottom.* Spoon the ragu on the focaccia, spread around. Place roasted aromatics on top. Carve the mozzarella globes in half, distribute on pizza roughly evenly. Then distribute salami and anchovies on top of the rest. Bake until bread is a golden brown and cheese has melted. If necessary, allow to stand for a few minutes before serving to allow excess liquids to absorb.

Several things proved controversial with my very white-bread friends here. First, the cheese is not shredded and instead simply melts where it comes to rest on the distribution. Why there must be an even distribution of massive amounts of cheese on the pizza is beyond me because using good cheese is more important than using a lot of it. Second, many people fear the anchovy. They shouldn't; it's savory, salty, and absolutely delicious.** Third, some people seem to think salami only belongs in a sandwich. How is it different than pepperoni?***

Some people just can't stand this much umami.

On the other hand, some people had some other rather creative ideas for pizza. I wasn't entirely sure what to think of spaghetti pizza -- it came last in the service and just about sent me into carbohydrate overload. It came with some nice crumbled pork sausage and tasted pretty good, though. Another person put three of the four seasons on a single pizza -- artichoke, olive, and mushroom; she omitted the ham because she is (mostly) vegetarian.

The Wife bypassed sauce altogether, spreading only some olive oil around and topped it with more of the roasted aromatics I used in the Calabrian Umamimania pizza (without the peppers, which she does not care for). I pulled a tricky one and bought Crimini mushrooms for her instead of those tasteless white things passed off as "food" to unsuspecting Americans. The Criminis and some black olives got marinated in some more olive oil, oregano, basil, garlic, and salt before being put on top of the pizza, and although I'm not usually much of a mushroom fan this was damn good stuff. As I understand it, this is close to a traditional Sicilian pizza, in that the ingredients are baked directly into the crust.

But the biggest revelation was Caribbean-style pizza. Hawaiian pizza, as some may know, is topped with Canadian bacon and pineapple. Caribbean pizza is topped with banana and green onions. Surprisingly good. A little looking around reveals that the use of banana and other sweet fruits on pizza may have originated in Brazil, which sort of makes sense when you think about it -- there is a large Italian expatriate and immigrant population and sweeter fruits are more plentiful there than the more savory vegetables and pork products favored in Italian and American pizzas.

* If you've made your own focaccia and done it correctly, this has happened already. The corn meal is to help prevent the crust from sticking to the pizza stone.** The Wife claims to like the flavor but dislike the "hairy" texture. It's no fuzzier than a peach, if you ask me, and it's packed to the gills (literally) with savory, salty yumminess. *** Pepperoni is also good on sandwiches. Come on, there's no rule against that.

Granted, the US team should never have allowed itself to fall two goals behind Slovenia. But it sure looks to me like we got the go-ahead goal with no foul called first. That goal should have counted, and the USA, not Slovenia, should be sitting atop Group C in the World Cup. As it is, though, we could sure use a little help from Algeria against England later today if we're going to qualify for the Round of 16.

June 17, 2010

David Makoeya was a 61-year-old man who lived in Limpopo Province, Republic of South Africa. Like any sports fan would be, he was excited about the world's biggest sporting event coming to his nation, and he wanted to watch Germany play Australia.

Unfortunately, his wife and two adult children were at home also and they were watching a gospel show which had not yet ended. Makoeya asked for the remote control to change the TV channel to the Germany game, and was refused. So he got up to change the channel by hand.

There may have been some penalty kicks, too. I haven't seen the box score yet.

One presumes that the remainder of the family, in addition to being unenthusiastic about soccer, considered themselves to be good Christians, which, after all, is why they wanted to watch the rest of the religious programming rather than the World Cup. Of course, just because they considered themselves good Christians doesn't mean they quite got the whole "Thou Shalt Not Kill" part of the religion. And one suspects that there may have been just a little bit more family dysfunction in the mix here than mere religious fanaticism clashing with sports fanaticism.

By the way, Die Mannshaft* defeated the Socceroos, 4:0 in what turns out to have been the highest-scoring game of the tournament so far.

Maybe if it had been the RSA team playing, something could have been worked out. But for now, the end score looks like it's going to be:

World Cup Fan Nil : Christian TV Show Fans Thirty-Five to Life

* "Die Mannshaft" means "The Team." A beautifully creative name from the same beautifully creative nation that gave us Dadaism and inspired the Soviet School of architectural design.

Contemporary talk of "green power" is no different than the kinds of talk of non-fossil fuel energy sources that have been out there for at least as long as I've been alive. Obama, Bush the Younger, Clinton, Bush the Elder, Reagan, Carter, Ford, and Nixon (and probably Johnson and Kennedy and Eisenhower and Truman before them) all were really up against the same problem -- economics. Oil is cheap, oil is efficient, oil is plentiful, oil fits readily into the economic and technological infrastructure we have already created where other energy sources do not.

We won't get serious about developing alternative energy technologies until and unless it becomes economically efficient to do so. Not until the real cost of oil at least doubles from its current price. And we'll continue to have wars motivated in part by the need to secure access to oil, we'll continue to have environmental degradation from burning the stuff, and we'll continue to have oil spills from industrial accidents.

In the meantime, there is, in fact, plentiful cheap oil, and no fuel known to mankind packs a better punch in terms of its mass-to-energy ratio than oil. The inflation-adjusted price of refined petroleum products is powerful evidence of the truth of that statement, even if it seems unlikely to you at first glance. If we've already passed peak oil (and I'm not at all sure that we have) it's still a long way down the slope.

Begin the day before your meal by brining the chicken breasts overnight in plenty of water with ¼ cup of sugar, ¼ cup of salt, a bay leaf, and the juice of about ¼ of one of the lemons per chicken breast.

The next morning, slice the remaining lemon into thin rounds. Bring the white wine to a boil to remove the alcohol, cool rapidly in freezer. Vacuum-seal each brined breast with an equal distribution of the lemon wedges and wine, and moderate amounts of the herbs and spices (reserve some herbs for later). Sous vide at 63.5°C (145°F) for at least 4 hours and no more than 12 hours.

Meanwhile, clean the celery, carrots, and onion, and then purée them together with some salt. Set aside.

Shortly before service, skin the cucumber and clean the shallot. Purée cucumber and shallot into crème fraîche, along with the reserved lemon zest, a pinch of the powdered garlic, and the balance of the chives and parsley. If preparing in advance, keep crème fraîche sauce refrigerated until immediately before service.

About half an hour before service, begin to sautée the vegetable purée. Remove chicken from sous vide oven; allow meat to rest. Fold conserved liquid into vegetable purée, reduce until about half of the liquid is boiled away.

Place chicken breasts on grill for finishing and curing. Using silicone brush, generously coat both sides of each breast with the vegetable reduction, while on the grill. Allow heat from grill to adhere vegetable coating to breast and to lightly brown the chicken, roughly 60 seconds per side, turning twice. After the third turn over, drape the top of each chicken breast with a thin slice of the black forest ham.

Plate and dress with the crème fraîche sauce. Serves well with whipped potatoes with roasted garlic, pasta dressed in olive oil, or a fresh baugette, alongside steamed, blanched haricots verts.

Notes:

If no sous vide is available, roast the chicken until it is cooked through but not dried out, and finish over medium-high heat in sauté pan with a smaller amount of the vegetable reduction than described here, adding your own chicken stock as the liquid for the reduction. The objective is to coat the chicken with the purée so as to blend the meat and vegetable flavors.

I suppose if you're a big mushroom fan, or you don't want to eat the ham for some reason, you could add mushrooms to this at some point, possibly swapping out the ham to make room for the fungus. If you try this, beware the devoid-of-flavor white mushrooms Americans claim to love so much unless they are also sautéed in butter, in which case you're really overpowering the chicken and the sauce. Similarly, the stronger earthy flavors of varieties like criminis, portabellas, or shitakes would weigh down the otherwise light feel of the dish. Of course, if you don't mind a heavier dish, then maybe you go for both mushrooms and ham. When you make it, it's your dish, do what you like. But for me, using mushrooms in French-inspired cooking says "autumn" or "winter", and with this dish, I'm trying to say "summer."

As far as I'm concerned, there is no substitute for crème fraîche -- yogurt, sour cream, and buttermilk are all sort of similar, but not really the same thing as crème fraîche. There is a product sold in some California markets I've seen called crema Mexicana which is about as close to crème fraîche as I've seen in the States; Wikipedia claims that there is a dairy product made in Appalachia called bonny clabber that is similar, but I never saw anything like that in Tennessee and it's not wise to believe everything you read on Wikipedia anyway. But I just couldn't bring myself to name the dish after the delightful French town where I first encountered crème fraîche.

I was astonished to learn last night that New York State does not have no-fault divorces.

If the columnists at Freakonomics are to be believed, a switch to no-fault divorce benefits neither the "monied" nor the "un-monied" spouse; it does not significantly alter the divorce rate (in the long run); it does not even necessarily mean divorces are faster or cheaper. It does reduce domestic violence, it does encourage women (whether married, single, or divorced) to work outside the home, and financially it tends to favor the party who wants out of the marriage most. I translate that last concept to mean "the party who first filed for divorce."

If New York becomes the fiftieth state to permit unilateral or no-fault divorces, this will be a good thing to my way of thinking. Indeed, I'm kind of shocked that New York is the last holdout; I'd have thought that it would have been a deeply religious and socially conservative state, likely in the South. But no, it's New York, which just goes to show you that assumptions are not always borne out by reality.

Watching old movies or TV shows and hearing dialogue about how one separated spouse "will not grant" a divorce to the other one who wants out seems bizarrely antiquated. If he or she wants out, he or she wants out. It may suck if you don't want to divorce, but the simple fact that if your spouse wants out, it means that the marriage is over. You have to both want to be married to be married.

Because that's the real rub with no-fault divorce -- if it becomes easy for one spouse to leave a marriage if he or she is unhappy with it, that creates a powerful incentive for married people who do not want to be divorced to make sure that their spouse is happy within the marriage. If you think marriage should be about mutual love, respect, teamwork, and happiness, then you should be in favor of no-fault divorce.

Those people who would use the law to make it difficult for people to divorce would create a disincentive to marry. If it is expensive, time-consuming, and humiliating to get a divorce, then I might choose to forego marriage altogether and just "shack up" informally with my chosen partner. So much for the sanctity of marriage.

People should marry if they want to, they should marry who they want to, with the rules for the marriage that they want to adopt, and they should un-marry if they want to. Marriage is an intensely personal decision that has as much to do with personal happiness and how you want to live your life as it does with finances and taxes, and the government should be as little involved in the process as possible and apply its rules uniformly and fairly to the extent that it must be involved.

If the government got out of the marriage business entirely, that would actually suit me just fine.

Since then, of course, I've been quite disappointed in how reality has played out. At first, it could be chalked up to inexperience and needing to respond to things immediately before Obama's new policy positions could be fully worked out. But after a year and a half in the White House, Obama owns whatever it is the government is doing outright, and if anything, it's worse than it was under Bush because not only has nothing changed, Obama has in some cases literally taken things up to the next level.

Here, I'll let my man Jon Stewart lay it out for you, using video to compare Candidate Obama to President Obama in the way that only The Daily Show (and its spinoff Colbert Report)* ever seems to actually do:

This guy does not take civil liberties seriously. He talked the talk as a candidate and not only did nothing, but consciously made it worse. The one thing I really, really was looking forward to in an Obama Administration turns out to to have been a cynical lie.

But on that super-accelerated deficit spending plank of his platform in exchange for little tangible increase in government or medical services, I've got to give the guy credit -- he followed through on that campaign promise with gusto.

I can't say I'm surprised. I am, however, quite disappointed.

* Once again, I throw my hands up in frustration that it seems to take a comedy show to do what the news ought to be doing.

My "Social Security Statement" came recently. Most of you Readers in the United States get these, too -- these are the four-page mailers from the Social Security Administration. They list your lifetime of earnings taxed for Social Security and Medicare, and give you a list of your promised benefits based on the amount of money you've paid in to the system.

This year's statement left me seething with resentment. The idea that by the time I'm 67 years old, the government will be in a position to simply give me the kind of money that's listed here seems more than a little bit ridiculous. But there it is, every year in black and white, from the government -- a solemn promise that I will have this money to rely on when I'm old and losing my ability to support myself, a solemn promise that I consciously know will be broken.

To be sure, the opening page makes clear that "...by 2037 the Social Security Trust Fund will be exhausted and there will be enough money to pay only about 76 cents for each dollar of scheduled benefits." As it happens, 2037 is the exact year that I will turn 67. So that makes it even more galling -- the government makes a solemn promise, and in the very same document tells me that it's going to break that promise.

This is compounded by the fact that it comes in the form of an annual "statement," not unlike a 401(k) statement, suggesting that Social Security is really some kind of a big investment and accounting device administered by the government. Of course, it is nothing of the sort. The hundreds of thousands of dollars I've paid in to the system over my lifetime were immediately used and there is no "account" being held for me in Washington or Charleston or wherever.

Most people will look at this document and incorporate it into their retirement planning as though it were a matter of course, a bedrock foundation, a safe assumption upon which the rest of their thinking about their golden years can be based. They will skip the prefatory language altogether, and look instead at the compiled numbers on the second and third pages, perhaps reminiscing about the good years and the bad years of their careers, and look at the promised benefits and think, "Well, that won't be so bad." To the extent that they're aware that there is a problem with the Social Security system, they will think that it's either somebody else's problem, because clearly their "account" is secure and healthy; or they will asume that politicians in D.C. will fix whatever problem is there, eventually, because they would never allow anything bad to happen to Social Security.

Here's my prediction. From 2010 to 2036, there will be periodic bouts of public hand-wringing about the impending doom of the Social Security system. Nothing, however, will be done. Then in 2036, taxes will increase significantly and benefits will remain more or less the same. The problem will be "fixed" for the likely duration of my lifetime. After that, taxes will have to be raised again.

But I cannot afford to be so optimistic in my thinking about my own retirement. I must plan for a life in which my monthly benefit will be zero, because that, in truth, is what the government can really afford to pay me.

Admist a June so filled with heavy stuff like massive oil spills, a global financial meltdown, a Presidency spinning out of control, Constitutional philosophy, historical disputes, and ultimate questions about the supernatural, it's good to spend a moment on something frivolous to break the tension. Like sports and the intense debate about those goofy, irritating one-note plastic horns fans are blowing on during the ongoing World Cup tournament called vuvuzelas.* I say, let the vuvuzelas stay. Sports is supposed to be fun. People have fun blowing on them.

Is it annoying to the audience at home? No more so than fans doing The Wave during a critical part of any sports game or singing "God Bless America" during a baseball game and glaring at the atheists who don't sing along. Or the Philadelphia Eagles fans singing that goofy "Fly, Eagles, Fly" song when the Iggles get a field goal or the USC Trojan marching band playing "Fight On" as though the band conducter was a CD set to "auto-repeat." Or Angels fans with their inflatable bang-sticks.

The vuvuzela is part of what a soccer football game in South Africa sounds like. If the Cup were being held in Brazil, there would be some Brazilian flavor to it. If it were being held in Japan, there would be a Japanese flavor to it. The tournament is in South Africa. You want to tune in to watch a game in South Africa? This is what you get -- fans armed with vuvuzelas.

Besides, they make one note. ESPN, ABC, and other broadcasters can buy digital sound filters to eliminate that single tone. Such technology surely exists. So lighten up, World Cup fans. Enjoy the games and just turn the volume down if ABC never gets its act together and buys a digital filter.

Now, for your enjoyment, a scene that I hope you'll be seeing a lot more of over the next couple of weeks:

Daniele de Rossi and fellow Azzuri celebrate after scoring the equalizing goal in the opening match between Italy and Paraguay. (Notice the Paraguayans standing around crying like little girls.)

* Vuvuzela simply has to be very near the top of the list of "words that sound like they're about something sexual but really aren't."

Today will be the closing arguments in the Federal challenge to California's Proposition 8. By the close of business, Pacific time, the case will be in the hands of Judge Vaughn Walker. It will almost certainly be appealed to the Ninth Circuit and then to the Supreme Court.

In a way, I'm nervous about that, because it raises the stakes for Presidential politics by virtue of politicizing the Supreme Court. But the real damage in that sphere has been done a long time ago, probably in 1973 and certainly by 1987. The Court is so politicized now that there is no going back foreseeable. An aphorism about the Court has been that it handles two kinds of cases: 1) cases dealing with abortion, and 2) everything else. We might have to lump the Prop. 8 appeal into category 1) in terms of its political and judicial treatment.

Now if you never read anything else about judicial philosophy, read Damon Root's assessment of the difference between conservatives and libertarians on matters of Constitutional law. Even if you call yourself a political liberal, the philosophical difference between the idea that the majority exercises presumptive power and the idea that the government's ability to act at all is circumscribed a priori is an important one to understand. It will help focus your thinking about Prop. 8 and whether or not you agree with the suggestion that it violates the Fourteenth Amendment. It will also illuminate your thoughts about the role of the judiciary in our nation as you deal with the sure-to-be wonky confirmation hearings for Elena Kagan coming up later this summer.

If, like me, you begin your analysis of a Constitutional question of with the question of "has the government demonstrated that this law is a valid exercise of its power?" then you, like me, must be rooting for the plaintiffs in today's arguments. If, unlike me, your analysis is based on the idea of "has the plaintiff pointed to an impediment to the exercise of the state's power?" then chances are good that you have difficulty coming up with a principled objection to Prop. 8. (You might have an unprincipled reason to favor that side, of course.) The issue is one of presumption. Legal conservatives read the Tenth Amendment to mean that a state can do pretty much anything it likes, so long as there is no limits on its doing so in the Federal Constitution. Legal libertarians read it to say that the rights are inherent in the people, not in the state, and therefore the state must justify its actions in all cases. (That burden may be a light one.)

What's important today is to understand the clash of ideas in the courtroom up in San Francisco. The defenders of Prop. 8, Ted Olsen the plaintiff's attorney in this case, and Judge Walker are all coming from a right-of-center perspective to this disagreement. "Liberal" legal philosophies (not all of which would point to overturning Prop. 8, I'll point out) are not really in play today, nor are they likely to be at the appellate stages of the case to come. That's why I point you Readers to Root's article to get a rich intellectual understanding of what's at stake.

An all-too-commonly heard claim is that this nation was founded on "Judeo-Christian principles," that its laws are based on the Ten Commandments (hereinafter the "Decalogue"), and that the founding of this "Christian nation" was accomplished by Christian men who undertook an act whose political significance they did not distinguish from an act of religious observance. This claim, in all its many variants, is a lie. (This is not the first time I've made this claim and used words like "lie" and "fraud" to describe it. "Fraud" has a precise legal meaning, and I use it here with that legal definition in mind.)

Like many effective and powerful lies, it rests upon a set of assumptions which are often quite pleasant. When I hear people lie in court, their lies are premised upon the agreeable proposition that they are describing reasonable actions of people undertaken in good faith. In fact, a little cross examination usually brings out the less pleasant truth, but that's a story for another day. The revisionist fraud I'm looking at this morning is based on a set of assumption that includes the idea that the Founders' opinions on matters of faith posses significance for us today, that their religious beliefs were and are somehow correct because they undertook the political act of founding our nation, that they were infalliable and intellectually consistent throughout their careers, and that they were "statesmen" and not politicians willing to compromise their principle or conceal things about themselves to gain favor at the ballot box or trade favors in the cloakrooms of Congress. These assumptions are all quite obviously false when you stop to think about them.

I don't mean to say we shouldn't respect and honor the Founders. Of course we should; they did remarkable things and were remarkable men. Nor do I suggest that their opinions regarding law and particularly the government they created are irrelevant. But they were quite conscious of their own fallibility, of their own vulnerability to political pressures of a decidedly non-transcendent nature, and indeed of their own propensity to engage in sometimes very crass political compromises. What I suggest is that we should keep them in proper perspective and not deify them.

And like all attempts at fraud, it is intended to induce detrimental reliance in the part of its victim -- you are supposed to believe this, and thus give up your liberty by allowing your tax dollars to subsidize Christian churches, to tolerate the use of governmental institutions to evangelize Christianity, and to elect politicians who promise to incorporate Christian religious institutions and religious doctrines into the law and the government. As an intermediate step, you are to associate Christianity with moral good because of its association with the government, and ultimately to equate the moral teachings of Christianity with the law.

So to those who would say that the nation was founded on "Judeo-Christian" principles and who hold the Decalogue up as a model for American law, I would refer you to Phil Plait of Bad Astronomy, who recently wrote on the subject. (Via.) Plait is no lawyer but it doesn't take a lawyer to run through the Decalogue and see, point by point, that it has nearly nothing to do with the Constitution of the United States and is quite frequently in conflict with it. To the extent that the Decalogue intersects with actual laws in place in the U.S.A. of either 1787 or 2010, the intersection is close to coincidental -- nearly all civilizations at all times have laws against murder and theft, and aside from that there really isn't all that much congruence between the two sets of laws.

June 15, 2010

There is no special icon for Google today! What the hell! Don't those commies up there in Mountain View know what an important day today is? Well, the fact is that nearly any day you pick will have some event of historical significance to examine. Google can't celebrate every anniversary of every thing -- and if it does, then the things that it does celebrate lose their cachet by dilution.

Today, for instance, is the seven hundred and ninety-fifth anniversary of Magna Charta. On June 15, 1215, a principle of civilization which had been absent from Europe nearly eight centuries returned to force, and that, more than anything else, propelled England, and then the rest of Europe in its wake, out of the medieval period and forward, ultimately, to modernity.

The Great Charter itself did not all that much to establish liberties or politically enfranchise individuals. The very King who issued it violated it within only a few years of signing it, faithlessly, strictly to quell a rebellion. And even though it was re-issued several more times, it is now completely superceded both in England and in all of England's many daughter and sister countries.* Still, if there is a bedrock principle, a foundation upon which we can say political legitimacy is built, this is it: the government is subject to the rule of law. We Americans too easily take that concept for granted, and ought to remember that there are yet many places in the world where that statement is not true. None of which you'd particularly want to be in for very long.

I realize that in 2015, it will be the octocentennial of that momentous day when King John kept his head by giving up a minute amount of power, but what is the 795th anniversary of a thing called?

He's quite serious about this. And he should be taken seriously. Daniels himself is a social conservative -- pro-life, anti-same-sex-marriage, a churchgoer, all the right credentials to be popular with members of the social conservative wing of the GOP, who fancy themselves collectively to be the Republican espirt vivant. So maybe it takes a guy like Daniels to point out that our government's fiances and our collective security should be prioritized significantly above social issues which, social conservatives are sporadically quick to remind me, are generally left to the states rather than the Federal government. He may not have the best credibility of fiscal issues, having been George W. Bush's Director of the Office of Management and Budget, but on the other hand that does make him knowledgeable about Federal spending.

I know social issues are a lot of fun for people. Sometimes they're fun for me, too. And there's less flexibility to cut the Federal budget as much as some would like. But that's where our energies, our brainpower, and our political efforts need to be -- as a party, as a nation, and as responsible human beings.

I caught the tail end of the President's address from the Oval Office tonight on NPR as I drove home. It's hard to believe that he's been in office over a year and not before used this vehicle for communicating with the nation. Three things struck me about what he said.

First, he sure invoked religion a lot. He talked about the "blessing of the fleet," and the Hand of God guiding us and showing us the way out of our problems, and invoked the blessings of God on the nation in our difficult hour. God, however, is not going to solve the problem of the oil spill -- human beings are going to solve that problem, or not, using science, technology, ingenuity, money, and labor. God isn't in that picture, so far as I can see. And the fact that Obama's proposed solutions to the problems we face includes a healthy dose of relying on a nonexistent God worries me.

Second, he indicated that the posture of the regulatory agencies overseeing industrial activity would become more adversarial and less cooperative. That may or may not be a good thing -- we don't want regulators cozying up to the regulated industries, either in mining or anything else, but we also don't want to regulate industries out of existence or even out of the ability to post healthy profits for their investors. I would hope for a balanced rather than an adversarial approach.

Third, he pointed out that we need to make a commitment to a long-term shift away from an economy where it makes sense to drill for oil in deep water. True enough. But the solutions he mentioned -- more energy-efficient buildings, wind and solar power, and incentivizing research by the energy industry -- left out two rather important, and achievable, pieces of the energy puzzle. He didn't mention the word "nuclear." We need more nuclear power plants, and he is wrong to back down from that important part of the array of options available to power our nation. He also didn't discuss shale oil extraction, which is technology approaching the cusp of economic profitability and which contains the potential for the United States and Canada to both become bigger oil exporters than the Persian Gulf States and Russia combined. Maybe that's something encompassed by his elliptical reference to R&D, but I doubt it.

A good energy policy is a good environmental policy and a good economic policy, all at once. Unless all those pieces of the puzzle fit together, it's a patchwork, panicked reaction to adverse events rather than an intelligent and effective response to a crisis. Last week, President Obama suggested that the oil spill was his 9/11. Having suspended diplomatic travels and effectively chained himself to the Oval Office and the site of the disaster until it is solved, having early intervention attempts to resolve the process fail miserably and publicly, and facing an ongoing and readily-quantifiable count of the ever-increasing measure of the disaster, it looks a lot more like Obama's Iran Hostage Crisis to me. Which dovetails nicely into my thoughts that Obama is really Jimmy Carter refashioned for a new generation.

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About Me

One wife, two dogs, two cats. Childless by choice.
Attorney (licensed in California and formerly in Tennessee). Aspirations to the bench.
Likes: professional football, cooking, good wine, bad science fiction movies, long walks on the beach.
Dislikes: People who struggle to accomplish tasks of ordinary difficulty, most country music, willful ignorance, magical thinking, and weak-ass barley pop beer.

Atheism FAQ

Transplanted Lawyer FAQ:

Q: Why do you write under a pseudonym? And why did you pick “Burt Likko” as that pseudonym?A: If I were writing under my real name, I might have to be more circumspect in offering provocative opinions. “Burt Likko” is an inside joke left over from an old friend of mine’s name being mangled by a careless person over the phone. If you don't get the joke, you aren't intended to. Move along, please.

Q: Where have you been transplanted from?A: I started out in California. Then I went to Tennessee. Then I came back to California.

Q: What’s the “Potted Plant” thing all about?A: The phrase “not a potted plant” comes from a famous quip made by a prominent lawyer named Brendan Sullivan while representing Oliver North, before a Congressional hearing in the late 1980's. It stuck with me.

Q: Why do you write such long posts?A: Not all my posts are long. But when I start exploring an idea, I want to do it completely.

Q: How much time do you spend writing all this stuff?A: It varies, of course. But probably less time than you think; I’m both a glib writer and a fast typist.

Q: Why do you write so many posts?A: I like it.

Q: I like to read your new stuff every day. But some days you don’t write anything at all!A: That’s not a question.

Q: Jeez, you really are a lawyer. Why don’t you write every day?A: Some days I don’t feel like it. Some days I don’t have time. Other days, I do, and on those days, I write.

Q: I don’t find the [insert subject here] posts interesting.A: So don’t read them. By the way, this is a list of “Frequently Asked Questions,” and that wasn’t a question.Q: Why didn't you write about [insert subject here]?A: There might by any of a number of reasons for that. Likely candidates include: 1) I haven't gathered enough information about [subject] to feel I have anything intelligent to say about it, 2) [subject] does not interest me at the moment, 3) I haven't found the time to write about [subject], or 4) pretty much everything that's needed to be said about [subject] can be found easily elsewhere. The internet is a big place and you should be able to easily find some discussion or coverage of [subject] if you can't find it here. I reject any moral judgments, whether explicit or implicit, concerning any failure, whether real or imagined, whole or partial, to comment on [subject]. If you think [subject] requires commentary that you do not believe is forthcoming here, well, Blogger and other similar services are 100% free and there is nothing to stop you from commenting on it yourself in your own forum.

Q: You’re not really an atheist, are you?A: I swear to God I am.

Q: Are you a member of the ACLU?A: No.

Q: Are you a member of Americans United for Separation of Church and State?A: No.

Q: Why don’t you refer to your wife by name?A: For the same reason I don’t refer to myself by name.

Q: What do you mean by “childless by choice?”A: I thought that was pretty obvious. I do not want to have or raise children.

Q: How much of this stuff about yourself is true?A: I don’t see how that matters. To the vast majority of you, I’m a pseudonymous blog author whom you will never meet or interact with. To those Readers, my personal life just isn’t all that big an issue.

Q: So why do you write about personal stuff at all?A: Because some of my friends and family do read the blog and for them, it’s a good way to stay in touch with me. If you don’t know me personally, then I would expect that my day-to-day personal affairs are uninteresting to you.

Q: Do you make money off this blog?A: Not a penny. Nor am I interested in doing so. The blog is a labor of love, not a commercial venture.

Q: Can I post on your blog?A: Maybe. We should talk (or e-mail) first, but it’s not out of the question.

Q: If I don’t want to comment but I have something to say about what you wrote, what can I do?A: Send me an e-mail. I won’t reprint our conversation without your permission and if I do reference what we’ve discussed, it will be in such a way that no one could possibly figure out who you are.

Q: Why do you delete comments?A: For the most part, I don’t. I do not delete comments for the reason that they reflect a point of view with which I disagree. But I do delete comments that 1) contain advertising or spam, 2) are overtly abusive, or 3) are apparently so unrelated to the topic of the post as to be non-sequiturs. And I reserve the right to delete any other comment for any reason that I, in my sole and complete discretion, choose to. If you believe a comment has been deleted wrongfully, I encourage you to rephrase your comment with the above in mind and try again.

Q: I hate you and think you’re an awful person because [insert reason, usually based on a political disagreement, here]. So why won’t you let me say so?A: It’s your right to disagree with me and even to hate me – but that doesn't make you special. The manner in which you express yourself is different than the viewpoint which you express. Respectful, intelligent disagreement is welcome. Trolling is not.

Q: Jesus Christ is my lord and personal savior. Can I give you my testimony?A: No.

Q: What would convince you that God was real?A: I strongly doubt that you can. Please don't try; I find such efforts tiresome.

Q: Why do you refer to God as Jehovah?A: It's the proper name of the diety most people are referring to when they talk about "God." I use the name despite the Biblical injunction against doing so because I do not believe in or fear magic spells or incantations in any form.

Q: So you were a Catholic, is that why you don’t believe in God anymore?A: What exactly does that question imply? As far as I can tell, Catholics are every bit as likely as Protestants to be morally good people. If you can understand why I would reject the Roman Catholic Church’s particular flavor of mumbo-jumbo, then it shouldn’t be that big a leap for you to understand why I disbelieve in your church’s mumbo-jumbo, too.

Q: Evolution is just another kind of religion. Believe in it if you want, but it isn’t real.A: You’re entitled to your opinion, of course. But you’re profoundly incorrect. A “religion” by definition involves the relationship of a person with at least one supernatural entity. Evolution, by its very terms, eschews reference to supernatural causal factors with respect to the question of the manner in which biological organisms speciate over time. Evolution enjoys overwhelming support in the forms of the fossil record, species diversity, and the ongoing, observable phenomenon of speciation.

Q: Speciation has never happened.A: Yes it has.

Q: Where do you get your pictures?A: Generally from Wikimedia Commons, XKCD or FARK.

Q: Why the Green Bay Packers?A: Because my family’s roots are in Wisconsin. I’ve rooted for the Packers since I was a little boy.

Q: I think you’re really a [something].A: Oh.

Q: Why do you post recipes?A: Life is lived best with good food and good wine enjoyed amongst good friends. When I cook, and it turns out well, I like to share the joy that brings. If food, cooking, and recipes do not interest you, skip the posts about them.

Q: You really hate Sarah Palin, don’t you?A: No, I don’t. I admire that she achieved high political office at a relatively young age. She has charisma above and beyond her good looks and seems to be a basically likeable and appealing person and would probably be a great dinner guest. I respect that she is protective of her family. But she’s a) too socially conservative for my taste, and b) not been able to demonstrate a thorough enough grasp of public policy issues I care about to be the kind of President I would like.

Q: Do you think this blog got you dooced out of your job in Tennessee?A: It certainly didn’t help. But I've no regrets about that.

Q: Why do you hate Tennessee so much?A: I don’t hate Tennessee at all! Tennessee had some really good things going for it. Its politicians have figured out how to provide for an adequate state government without any income tax -- California should take a lesson from them. It’s beautiful and green. Housing was affordable. We made and still have some very good friends. I think it's something of a disadvantage there to not be (or at least claim to be) a Baptist, though. And I got a great offer to return to California.

Q: If you could be any kind of a tree, what would it be, and why?A: Anything in a national park. That would minimize my chances of being turned into furniture.

Q: For someone who claims to not have a television, you sure seem to know a lot about what’s happening on TV.A: The internet is a remarkable thing.

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